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From Products Liability Law Daily, April 27, 2017

Take-home asbestos exposure ruling against TVA upheld

By Leah S. Poniatowski, J.D.

The Tennessee Valley Authority had a duty to prevent take-home asbestos exposure to the spouse of a nuclear plant employee who contracted and died from mesothelioma, the U.S. Court of Appeals for the Eleventh Circuit ruled, upholding the lower court’s determination. The appellate court also held that the discretionary function exception to liability did not apply (Bobo v. Tennessee Valley Authority, April 26, 2017, Carnes, E.).

Background. A 22-year employee of the Tennessee Valley Authority (TVA) worked mainly at its Browns Ferry Nuclear Plant in Alabama, at which there were numerous products and materials that contained asbestos. He was required to wear protective gear when working in parts of the facility containing radioactive materials, but wore only his street clothes when sweeping up asbestos insulation residue after the insulators had finished. His wife would launder his work clothes two times a week and would shake the dust off before washing, which was so heavy that she described the small room as being "foggy" from the debris. The employee worked until his death in 1997 from a heart attack; he also had been diagnosed with lung cancer caused by asbestosis. In 2011, his wife was diagnosed with pleural mesothelioma and died almost two years later. Before her death, she filed a lawsuit against TVA and others, claiming that her illness was caused by wrongful exposure to asbestos arising from laundering her husband’s work clothes.

Trial court. The lower court concluded that the spouse’s asbestos exposure was more likely than not occurred when she laundered her husband’s work clothes (see Products Liability Law Daily’s September 30, 2015 analysis). The lower court also determined that the foreseeability of an injury was a key factor in finding a duty and that the Alabama Supreme Court would likely hold that employers of persons exposed to asbestos at work owe a duty of care to non-employees in "take-home" cases. The court additionally held that TVA breached this duty because it failed to implement reasonable and minimally-expensive safety procedures that would have prevented her mesothelioma. The lower court awarded the surviving daughters $3 million for their mother’s pain and suffering in addition to medical expenses. TVA filed the present appeal.

Duty under Alabama law. The Eleventh Circuit held that TVA had a duty not to expose the spouse to take-home asbestos in light of Alabama’s focus on foreseeability as a key part of its analysis of duty, the state high court’s recognition of a duty in cases when the defendant’s activities create the risk of harm, and in consideration of public policy. The appellate court explained that in order to resolve whether TVA had a duty, it must rule as the Alabama Supreme Court would. The state high court had declined to answer two questions presented by the lower court vis-a-vis liability in these types of exposure cases and provided no explanation for its position, but the high court referred to its ruling in Sheffield v. Owens-Corning on the issue of the causation standard.

Under Alabama law, the focus in analyzing whether there is a duty of care is whether the injury is foreseeable by the defendant. There was a minority of jurisdictions that imposed a duty to prevent take-home asbestos exposure, and those jurisdictions also held foreseeability was a key factor in duty analysis. Although Alabama presumably would follow the majority of courts, those jurisdictions not imposing such a duty did not weigh foreseeability as Alabama does. Accordingly, the appellate court explained that the Alabama high court would impose a duty to prevent such exposure.

Further, the appellate court determined that the spouse’s injuries were foreseeable to the TVA and that TVA breached this duty by failing to prevent employees from transporting the dust and fibers from the workplace to their homes despite regulations and policies that required them to make such efforts.

Exposure tests. The appellate court held that whether the "substantial factor" test or the "frequency-regularity-proximity" test applied was of no consequence because the evidence of exposure was sufficient to satisfy either test. The appellate court stated: "To answer the question with which we began, TVA did cause Mrs. Bobo to die sooner and suffer more in the course of dying than she otherwise would have."

Discretionary function doctrine. The appellate court also determined that the discretionary function doctrine exception did not protect the TVA from liability because it had violated OSHA regulations and its own internal policies. It set permissible asbestos exposure standards higher than OSHA limits, even though it was required to comply with OSHA rules; it failed to comply with OSHA’s and TVA’s own mandatory directives; and it failed to provide required protective equipment and clothing, separate lockers, and showers.

The case is No. 15-15271.

Attorneys: Charles E. Soechting, Jr. (Simon Greenstone Panatier Bartlett, PC) for Melissa Ann Bobo. Edward C. Meade for the TVA.

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